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TMI Blog1980 (3) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... objection was raised to that effect before the learned Chief Metropolitan Magistrate, the Magistrate has wrongly held that no sanction under s. .196(2) is necessary for taking cognizance of those offences. Section 196, Cr. PC, states as follows " (1) No court shall take cognizance of (a) any offence punishable under Chapter VI or under s. 153A, section 153B, section 295A or section 505 of the Indian Penal Code (45 of 1860), or (b) a criminal conspiracy to commit such offence, or (c) any such abetment, as is described in s. 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. (2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings : Provided that where the criminal conspiracy is one to which the provisions of section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings relating to the first accused-firm and in pursuance of the aforesaid conspiracy all the accused wilfully fabricated the aforesaid account books, letters and receipts, etc., in the aforesaid manner with intent to use them as genuine evidence in the course of the I.T. assessment proceedings relating to the first accused-firm and did use the same in the course of the said I.T. assessment proceedings and the second and third accused knowingly and wilfully delivered to the ITO false returns of income and false statement of accounts relating to the first accused-firm and the second accused made a false verification in the aforesaid false returns and accused Nos. 4 and 5 abetted accused Nos. 2 and 3 in the commission of the aforesaid offences. In view of s. 195(1)(b)(i), Cr. PC, the question to be determined is whether the ITO is a court within the meaning of the aforesaid cl. (i) of sub-s. (1)(b) of s. 195. In support of their contention that the ITO is not a court, the petitioners have relied on the decision of the Kerala High Court in Balakrishnan v. ITO . In that case the accused company filed before the ITO its return of income and during the course of the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e I.T. Act, and where, therefore, an offence under s. 193, IPC, is committed in respect of the proceedings before the ITO, a complaint by that officer is a condition precedent prescribed under s. 195(1)(b), Cr.PC, 1898, before a Magistrate can take cognizance of it. Section 37 of the Indian I.T. Act reads as follows: " Powers of income-tax authorities.-(1) The Income-tax Officer, Appellate Assistant Commissioner, Commissioner and Appellate Tribunal shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely: (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company, and examining him on oath; (c) compelling the production of books of account and other documents ; and (d) issuing commissions. (2) Subject to any rules made in this behalf, any Income-tax Officer specially authorised by the Commissioner in this behalf may, (i) enter and search any building or place where he has reason to believe that any books of account or other documents which in his opinion will be useful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director, Terelac Furnaces (P.) Ltd. v. ITO, a learned single judge of the Kerala High Court has pointed out that the decision in Lalji Haridas v. State of Maharashtra [1964] 52 ITR 423 (SC), was rendered before the new Cr. PC came into force, and the learned judge then went on to say whether the effect of the aforesaid decision of the Supreme Court had been taken away by the insertion of sub-s. (3) in s. 195 of the new Code. The learned judge pointed out that in Balwant Singh v. L. C. Bharupal, ITO [1968] 70 ITR 89, the Supreme Court had clarified the ratio decidendi of the decision in Lalji Haridas v. State of Maharashtra [1964] 52 ITR 423 (SC) The learned judge has pointed out that in Balwant Singh v. L. C. Bharupal, ITO [1968] 70 ITR 89 (SC), the Supreme Court clarified its decision in Lalji Haridas v. State of Maharashtra [1964] 52 ITR 423 (SC) as follows : "In view of these provisions, the majority view was that proceedings before the Income-tax Officer are judicial proceedings for the purposes of sections 193, 196 and 228 of the Penal Code and though the court did not go into the general question whether the officer is a court or not held that those proceedings must be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96A(2), Cr. PC, 1898, before it was amended by the Code of 1973, no court shall take cognizance of the offence of criminal conspiracy punishable under s. 120B of the IPC, in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Govt. or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Govt. has, by order in writing, consented to the initiation of the proceedings : Provided that where the criminal conspiracy is one to which the provisions of sub-s. (4) of s. 195 apply, no such consent shall be necessary. Under s. 279A of the I.T. Act, notwithstanding anything contained in the Cr. PC, 1973, offences punishable under s. 276B or s. 276C or s. 276 CC or s. 277 or s. 278 shall be deemed to be non-cognizable within the meaning of that Code. One of the offences alleged against the petitioners is an offence under s. 277 of the I.T. Act. Therefore, it is not an offence which comes under the exception provided by the words " other than a criminal conspiracy to commit a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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